A Doctor is Not Guilty of Negligence
“The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”; is the definition given to negligence from the case of “Blyth v Birmingham Waterworks Co (Ex, 1865)”. This definition came from establishing that the defendant owed that particular plaintiff a duty of care, furthermore it must be proved that the defendant was in breach of this duty in order to state whether or not the defendant was negligent. The standard of care required of the defendant is that of the ‘reasonable man’. There is not a certain degree of negligence; however it is a noticeably flexible concept, allowing the court to impose standards ranging from very high to very low.
The standards expected from individuals may vary, according to their profession. In other words a person whom has a particular skill or profession, must reach the standard of a reasonably competent person who put into effect that skill or profession. However, the level of skill demanded varies. A member of a particular profession discharges their duty by conforming to the standards of a reasonably competent member of that profession, and inexperience is not an excuse. For example, a doctor must ‘act in accordance with a practice accepted as a proper body of reasonable and skilled medical opinion, and is not negligent merely because there is a body of opinion which would take a contrary view’.
This was the test laid down in the “Bolam v Friern Barnet Hospital Management Committee (HC, 1957)” and since then has been held that where there is more than one accepted method of doing things, all of which are regarded as proper by a skilled body of opinion, the judge is not entitled to make a finding of negligence on the basis of his preference for one method rather than an another “Maynards v West Midlands Regional Health Authority (HL, 1984)”.
The Bolam test applies to professions in general, however, on occasions it has been suggested that is only in relation to the medical profession because originally it was adopted for medical matters. By using the Bolam test it meant that the defendant would not be held negligent if he acted in a manner in which it is also regarded as acceptable by a reputable group of experts, the defendant would not be held negligent even if others in the same profession would have chosen another procedure. The Courts responded by emphasising they reserve the right to disapprove even a widely-held view and treat a certain case as to being negligent, this came about from “Bolitho v City and Hackney Health Authority (1997)”. Bolitho challenged the Bolam test in the way that if the court believed that the Bolam test is not right for a particular case then they can overrule it.
There were many criticisms concerning the Bolam test;
It is generally weighted too heavily in favour of the professions.
It provides yet another means by which professions protect themselves.
The rule allows the professions to determine their own standards and codes of practice. Such standards would appear to be only exceptionally reviewable by the courts.
The Bolam test allows standards to be set too low.
What is a reasonable body of opinion within a profession and how many persons constitute such a body?
These criticisms made it easier to overrule the Bolam test in certain cases and also brought about challenges. The challenges made to the Bolam test could be categorised in three separate questions, the first question being ‘can a judge make a choice between different bodies of medical or professional opinion?’; initially the judge can decide whether a certain body of opinion is reasonable this came from “Bolitho v City and Hackney Health Authority (1997)”, however, it is rarely used. An example of a case that used Bolitho instead of Bolam is “Rogers v Whittaker (1992) 67 ALJR 47”; this case rejected the Bolam test altogether and the House of Lords had the opportunity to re-asses using Bolitho. However, it was argued that the Bolam test applied to this case. Nonetheless, the court stated that Bolam was not conclusive. The court could inquire whether a body was ‘reasonable’ or ‘responsible’, Lord Browne Wilkinson stated:
“these decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendants conduct, the defendant can properly be held liable for negligence...In my judgement that is because, in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied upon is reasonable and responsible... it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible”.
The second question which challenges Bolam is; ‘when will the courts state that a deviation from standard professional practise is to be regarded as negligence?’ it is clear that much deference is given to medical opinion , even if such opinion deviate from the norm. For example, the case of “De Freitas v O’Brien and Connolly (1995)”, despite only 11 surgeons out of 1000 surgeons claiming they would of carried out a certain procedure, the court still accepted and the small percentage of ‘reasonable bodies’ opinion and stated it was still ‘reasonable’.
Finally, the third question is; ‘how is a ‘reasonable body of medical opinion’ determined?’ in many jurisdictions the Bolam test has either been radically modified or rejected altogether, as mentioned before the case of “Rogers v Whittaker (1992) 67 ALJR 47”; rejected the Bolam test altogether.
However, although there are many criticisms, the Bolam test is still used to this day, this being because as Lord Denning famously stated; ‘holding a dagger to every doctor’s head’, this implies that if every doctor were to be held liable for every mistake they made, they could not progress in their profession, as they can only progress by making mistakes and learning from them. Holding a person liable for an error in judgement would mean every single doctor would get sued as errors are made from everyday life. An example of where an error in judgement was made is the case of, “Whitehouse v Jordan” where the doctor accidentally tugged on the baby and it resulted in the baby becoming paralysed, it was said that they cannot be sure because the error made was not negligence but an error in judgement. If one case of error in judgement was allowed, then it would open floodgates of litigation which is not reasonable.
In conclusion to this, the Bolam test is still used to this day, this being because it protects the people of different professions. Without the Bolam test, people in certain professions would be deemed as easy targets and would cause floodgates of litigation as it could result in the person being sued for error in judgement and not negligence itself.